A Senior Advocate of Nigeria and Professor of Law, Damilola Olawuyi, speaks with ONOZURE DANIA on solutions to the crisis rocking the Plateau State House of Assembly, among others
What is the way out of the current crisis plaguing the Plateau State House of Assembly?
This legal imbroglio is unfortunately another sad reflection of the urgent need for reforms in our judicial system to bring about greater coherence and transparency in the dispensation of justice. The 1999 Constitution makes it clear that the Court of Appeal sits as the final court over appeals arising from national and state Houses of Assembly elections, while petitions from the governorship and presidential elections go all the way to the Supreme Court.
However, both the Court of Appeal and the Supreme Court have in several recent cases maintained the clear principle that appeals bothering on pre-election matters such as the issue of nomination and sponsorship are outside the remit of an election tribunal and should therefore generally not be entertained as a basis for challenging the outcome of an election. While the Supreme Court maintained consistency and fidelity to this principle in dismissing the petition against Governor Muftwang of Plateau State, it is rather shocking and would appear to be a clear case of judicial malpractice for the Court of Appeal to radically depart from its own long-settled principle.
There is a clear and urgent need for the National Judicial Council to conduct a comprehensive review and evaluation of the rather bizarre outcome of the Plateau case, and apply far-reaching disciplinary action and sanctions to any justice of the Court of Appeal found wanting either for professional malpractice or incompetence. Without this, the Plateau case can do permanent damage to public trust and confidence in the judiciary as the last hope of the common citizen.
There is also a need for the NJC and the Chief Justice of Nigeria, Justice Olukayode Ariwoola, to issue clear practice directions to correct the confusing precedent that this case may have unwittingly set. Some concerned analysts have already called for the constitution to be amended to allow all election cases to end at the Supreme Court, but I do not see this as necessary because it will only add to the already heavy caseload of the Supreme Court. Rather, what we need is for the NJC to review the matter and publicly set the record straight on the confusing and incoherent outcome of this particular case.
Justice Ariwoola, on February 26, 2024, swore in 11 new justices of the Supreme Court, bringing the number of justices on the apex court bench to 21. How will this affect the quick dispensation of justice in the country?
The swearing-in of 11 new justices of the Supreme Court is a positive and much-awaited development that finally allows the court to attain its full complement of 21 justices. When you look at the sheer number of cases handled by the Supreme Court, it is nothing short of a miracle for the court to have functioned with almost half of its membership for so long. As you know, I have been one of the most vociferous and consistent advocates not only for an increase in the budgetary allocation to the judiciary but also to ensure the speedy appointment of a full complement of justices for the Supreme Court.
It is therefore expected that having a full membership now will enhance the speedy and effective dispensation of justice by the court. I am also impressed with the broader experience and expertise of the newly appointed justices, ranging from expertise in constitutional and electoral disputes to commercial, arbitration, environmental, and international law matters amongst others. So in addition to caseload reduction, having such a broad range of expertise and experience should undoubtedly further enrich the jurisprudence of the court, especially when handling niche disputes.
Senior lawyers have proposed that the constitution should be amended to stop some cases at the Court of Appeal to lessen the workload on the apex court. What’s your view on this?
I agree that reducing the workload of the Supreme Court is not only about appointing more Supreme Court justices. The real driver of the workload is the rather open-ended jurisdiction which allows almost all forms of appeals to end up at the Supreme Court. It is simply impracticable for the highest court of the land to entertain all kinds of appeals, including matters of private transactions, such as land, contract, and family disputes that have no federal or national significance.
One way forward would be to limit the jurisdiction of the Supreme Court only to appellate cases that involve constitutional or federal law. All appeals relating to private, non-federal, and non-constitutional matters should terminate at the Court of Appeal.
This is exactly the practice in true federal countries such as the United States. The US Supreme Court only entertains cases that have federal or national significance. This includes cases that involve US constitutional or federal law; disputes between two or more states; or cases involving ambassadors and other federal ministers. This explains why the United States only has nine justices of the Supreme Court despite the huge size and population of the country and does not perennially struggle with heavy workloads and backlogs as much as our Supreme Court does.
The problem of backlog and institutional constraint facing the Supreme Court is therefore directly traceable to the lopsided 1999 Constitution and the form of federalism that it creates which fails to clearly and practically streamline the jurisdiction of the Supreme Court.
What we urgently need is a true federal constitution that streamlines the jurisdiction of the Supreme Court. By so doing, not only will we reduce the traffic and backlog at the Supreme Court, but we will also be strengthening the Court of Appeal which has several divisions and is closer to the people in terms of logistics, location, and reach.
How do you address the practice of the operatives of the Economic and Financial Crimes Commission and National Drug Law Enforcement Agency breaking into citizens’ homes under the guise of carrying out arrests or conducting searches?
International law clearly emphasises the need for a human rights-based approach to law enforcement, which is simply the comprehensive, systematic, and coherent integration of international human rights standards in the conduct of law enforcement functions. This therefore underpins the need for the EFCC, NDLEA, and even the Nigeria Police to, at all times, respect and obey the fundamental rights of all persons when exercising their functions. The constitution also recognises the right to dignity of all persons which aims to prevent arbitrary interference with people’s privacy, family life, and home.
Of course, while it is standard practice across the world that some enforcement operations may require home raids to prevent a tip-off and escape of criminals. The important point is that such operations are rare and exceptional and are often done after full investigations and due diligence have been completed which clearly document and establish a case against the person whose home is raided, as well as a potential flight risk or destruction of important evidence if a home search is not urgently made. It is therefore unfortunate that what should be reserved for exceptional instances has fast become routine operational practices by some of our law enforcement agencies, even for mere suspicion, and at times to intimidate perceived political opponents.
As someone who served on the United Nations Working Group on Business and Human Rights as an independent expert, you recently presented a comprehensive report to world leaders at the 78th Session of the United Nations General Assembly in New York, calling for the integration of human rights in key economic sectors. How can Nigeria actualise this?
The report titled, “Extractive Sector, Just Transition, and Human Rights” emphasises the need for economic policies that leave no one behind. For example, in response to the climate change emergency, several countries worldwide have announced energy transition programmes, including the removal of fuel subsidies to ensure sustainable consumption patterns. While such transition programmes are very important, we must also ensure that they do not result in adverse human rights impacts in already vulnerable economies and societies, such as in Nigeria.
For example, we have seen the complex economic hardships and challenges triggered by subsidy removal in Nigeria, which has greatly impacted the ability of many people to afford food, accommodation, transportation, and other basic life essentials.
Energy transition programmes and policies should not create new forms of human rights abuses, including unemployment, social exclusion, poverty, energy insecurity, and conflict risks. To balance such energy policies with human rights, the government at all levels must accelerate economic diversification and eco-entrepreneurship, especially upskilling and reskilling programmes that generate new investments and jobs in the clean technologies sector, such as hydrogen, electric vehicles, carbon capture, and storage.
I, therefore agree with recent calls for a standalone “Ministry for Climate Change, Sustainable Development, and Humanitarian Assistance” that will combine climate change and environmental protection functions with providing humanitarian assistance to those adversely affected by disasters, as well as climate mitigation and adaptation policies such as subsidy removal.
